Employers And Vicarious Notes

• Vicarious liability: ‘on behalf of another’ - where one party is held liable for the torts of another, arising from a specific relationship between the parties

• Form of secondary liability

• No need to prove fault on the part of the D: D has strict liability

Rationale:

1. Employer’s superior financial position : compulsory insurance: Employer’s Liability (Compulsory Insurance Act) 1969

2. Control and supervision over employees

3. Should suffer the consequences of negligent recruitment

4. Ensures higher standard of care and better training, supervision and control

• Employer’s Indemnity/Contribution: Employer can seek an indemnity from the employee – so they can sue the employee for an indemnity

  • S. 1(1) Civil Liability (Contribution) Act 1978: “The Lister Principle”

  • If employees are up to no good: collusion/illegality

  • In Lister: C was run over negligently at work and sued his boss vicariously: but employer exercised master’s indemnity: the C was in fact the negligent employee’s father – they were trying to make money from vicarious liability (because they had made money from the litigation – they were not impecunious –so the employer was able to sue for an indemnity)

• Principal + Agent: If actions are authorised by the principal, then he is vicariously liable

• Partnerships: partners are vicariously liable for the actions of the other partners: s.10 Partnership Act 1890

Elements:

1. A tort committed by another (X)

2. An employment (or agency) relationship exists between D and X; and

3. The tort was committed in the course of employment

A tort must have been committed: must establish this before the D can be made vicariously liable (usually negligence, but can be trespass to the person)

The Employment relationship

• Employer/Employee relationship – ‘Contract of service’: contrast with employer-independent contractor relationship where there is a ‘Contract for services’ – vicarious liability won’t usually arise

The Control Test (Historical): Too simplistic but still partly used

• Yewens v Noakes: the more control an employer exercises the more likely an employment relationship

• Doesn’t always work – doctors, lawyers, accountants: control is not conclusive

• Cassidy v Minister of Health – hospital was vicariously liable despite only limited control over the doctor

• Argent v Minister for Social Security however – art teacher was allowed to teach what he wished with no prescribed syllabus and with only occasional visits by Director of Drama Studies – found to be self-employed

The organisation or integration test: Doesn’t always work

• Denning LJ in Stevenson, Jordan and Harrison v MacDonald: whether or not the worker is fully integrated within the organization or whether they are auxiliary to it

• Whittaker v Minister of Pensions: trapeze artist was held to be fully integrated within circus:

Multiple or Economic Reality Tests: ‘Economic reality, composite’ test: favoured approach

• Market Investigations v MOSS: Cooke J - control not the only method of determining relationship: multiple factors – no definitive test

  • Part-time interviewer conducting market research held to be under a contract for service

• Ready Mixed Concrete v MOP: X drove a concrete lorry: held to be an independent contractor despite company control over uniform and colours of the lorry. He was responsible for hiring, insuring and running the lorry and was paid on the basis of his mileage

  • MacKenna J: 3-stage test:

1. Remuneration

2. Control; and

3. Whether ot not the other provisions are consistent with a contract of service

• Warner Holidays Ltd v Secretary of State for Social Services: McNeill J – list of points a court should consider:

1. Level of control

2. Provision of tools and equipment

3. Salary

4. Tax/PAYE/national insurance: Airfix v Cope

5. Sick pay

6. Bearing the risk of profit and loss: Young & Woods Ltd v West / Hall v Lorimer

7. Residual control

8. Control over hours of work

9. Right/ability to do other work: Argent v Minister of Social Security

10. How parties describe their relationship ie labelling

    • Massey v Crown Life Insurance: labelling NOT conclusive

11. Mutuality of obligations: the more obligations the more likely the employment relationship

    • O’Kelly v Trusthouse Forte: casual waiter not an employee as had no obligation to work and the employer had no obligation to provide work

Lending Employees: Where Employer (E) lends employee (X) to another employer or hirer (H)

• Mersey Docks v Coggins and Griffiths: HL stated that as a general rule (E) remains liable and it would be difficult to rebut this presumption

• Viasystems Ltd v Thermal Transfer Ltd and Others: CA found that in certain circumstances, two parties can be vicariously liable for the actions of the same employee: dual liability may occur where an employee is lent to work for another and both employers are obliged to control the employee’s actions – but this is rare

• Emphasis on the level of control enjoyed by the hirer over the worker and the provision of equipment: Mersey Docks involved the hire of a crane driver and his crane – his wages continued to be paid by original employer and hirers did not tell him how to operate his crane

Tort must be committed in the course of employment

Winfield – an employee is in the course of employment if the wrongful act is:

1. Expressly or impliedly authorised by the employer; or,

2. Incidental to the carrying out of the employer’s proper duties; or

3. An unauthorised way of doing something authorised by the employer

• Authorised acts in an unauthorised manner:

  • Limpus v London General Omnibus Co: bus driver racing bus with another driver

  • Bayley v Manchester, Sheffield and Lincolnshire Railway: railway porter injured C pulling him from the correct train

  • Century Insurance v N. Ireland Road Transport Board: lorry driver caused an explosion by smoking a cigarette while filling lorry with petrol

• To be outside course of employment an employee must be acting on a ‘frolic of his...

Buy the full version of these notes or essay plans and more in our GDL Tort Law Notes.